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Thomas Miles

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In discussions of "judicial activism," almost everyone focuses on how often Supreme Court justices vote to strike down acts of Congress. These discussions neglect a question that is, in terms of the Court's actual workload, much more important: How often do justices vote to strike down acts of the executive branch? We attempted to answer that question by compiling a large sample of votes (more than 500) from 1989 through 2005. We were startled by our results. In a nutshell, the more liberal members of the Court were the most likely to vote to uphold the decisions of the executive branch. The most conservative members of the Court were the least likely to vote to uphold those decisions. Justice Stephen Breyer voted in favor of the executive 82 percent of the time -- the highest pro-executive voting rate on the Court. Justices David Souter, Ruth Bader Ginsburg, and John Paul Stevens were next, with an average voting rate in favor of the executive of 75 percent. Justice Antonin Scalia...